Can the state discipline employees, withdraw the punishments and then more severely discipline them?
That question may soon be tested by Cal Fire Director Ken Pimlott, who rescinded the single-rank demotions of three state firefighters for allegedly cheating on job interviews then imposed stiffer punishment after two of the men quickly regained their previous rank with new fire units.
With their union’s backing, James Michels, Frank Schonig and Justin Chaplin last week filed formal challenges to their new demotions, according to disciplinary documents obtained by The Sacramento Bee that also provide new details of a scandal that has shaken Cal Fire to its core.
Mike Lopez, president of Cal Fire Local 2881, said he was dismayed that Pimlott had demoted the three men again and suggested the director was spurred by embarrassing media reports instead of sound judgment. The union is not taking a position on whether the terms of punishment were appropriate, Lopez said, but it remains dead-set against what it says is the department’s illegal disciplinary do-over.
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Cal Fire ranks / monthly base pay: Firefighter I / $2,918 – $3,689 Firefighter II / $3,064 - $3,872 Fire apparatus engineer / $3,458 – $4,163 Fire captain / $3,794 – $5,284
“What’s going on is something we’ve never experienced before,” Lopez said. “And for us, the credibility of the director with the men and women of Cal Fire is being called into question because of double jeopardy.”
Cal Fire Deputy Director Janet Upton said Pimlott “did what he said he’d do” after The Bee reported that Michels and Schonig had promoted back up shortly after he stripped them of their rank.
Michels, Schonig and Chaplin allegedly received text messages last year from then-Cal Fire Academy instructor Orville Fleming that contained interview questions and answers for temporary fire captain jobs at the Ione training facility. Fleming was on the interview panel that ranked candidates, according the new batch of state records obtained via Public Records Act request.
On March 18, 2014, after mailing his application materials, the state documents show Schonig emailed Fleming: “Hey Chief just checking in.”
Fleming’s response: “I will probably look at resumes this week and as soon as something would happen I will call you. I am going to hire you!”
Investigators later asked Michels his “general feeling” when he saw Fleming’s text. His response, according to the the state disciplinary record:
“Like butterflies in the stomach, like that’s not good ... what do you do, do you make a phone call to him, the Academy, hey, I need to talk to, you know, Mo’s boss? ... It’s competitive and we’re trying to get a job there ... do you sweep it under the rug in hopes of just preserving your own position or ... do you send it, you know, back up the chain? And so that was my moral dilemma ... where does it – where does it go from there.”
All three men were interviewed and hired from a field of seven candidates, according to the state records.
Not long after that, Fleming was arrested and charged with the May 1, 2014, murder of his girlfriend, Sarah June Douglas. He has pleaded not guilty. Cal Fire terminated him for failing to show up for work while he was eluding a police manhunt.
Fallout from the homicide prompted a $1.7 million Highway Patrol investigation that led Cal Fire to allege academy managers drank on the job, abused state vehicles, share sexually-explicit pictures and links on state phones, sexually harassed women, used state property to meet prostitutes in Sacramento – and that Michels, Schonig and Chaplin cheated with Fleming’s help to get promoted.
Pimlott has said he was involved in deciding the terminations, demotions and pay cuts handed down to 15 Cal Fire employees in the aftermath of the scandal.
Michels, Chaplin and Schonig were demoted Jan. 31 to fire apparatus engineer with a 5 percent pay cut. The terms of discipline allowed all three to “remain eligible for promotion during this time period,” but the pay reduction would remain effective regardless of the position held.
Chaplin and Schonig promoted back to fire captain with new units within weeks. Michels did not promote.
Last month, Cal Fire withdrew the first demotions. It also gave the three men a total $1,574.89 to make up for wages lost since January, Upton said in an email.
Then the department demoted all three men from fire captain to fire fighter II, effective June 1, the new disciplinary records show. The documents don’t mention the former punishments.
Cal Fire declined to comment on the particulars of the pending personnel matters, but Sacramento employment attorney Paul Chan said the department probably thinks it can “have a second bite at the apple” by treating the initial punishments as though they never happened.
It can be done under certain circumstances, Chan said, “but I think that’s problematic for Cal Fire because the issues had been resolved with the first discipline. You can’t get more than one bite.”
Conferences to discuss settling the cases are scheduled for Sept. 15 at the State Personnel Board’s Capitol Mall headquarters. If the sides don’t reach agreements, the parties will go before judge. Rulings from those hearings would go to the board, which could approve them, reject them or conduct its own hearings.